Hill v. Hutchinson Care Center

1

NOT DESIGNATED FOR PUBLICATION

No. 111,615

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROBERT HILL, MARCELENE CORCORAN,
CARMEN CLARK, and NATASHA WILLM,
Appellees,

v.

HUTCHINSON CARE CENTER, L.L.C., DESERET HEALTH GROUP, INC.,
DESERET NURSING and REHABILITATION at HUTCHINSON, INC.,
ROBERTSON PROPERTIES MIDWEST, LLC, HUTCHINSON, KANSAS, L.L.C.,
and JON H. ROBERTSON, GARETT ROBERTSON, and TYRELL J. ROBERTSON,
All Individually and Doing Business as the Named Business Entities,
Appellants.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed October 9, 2015. Affirmed.

John B. Rathmel, of Evans & Dixon, LLC, of Kansas City, Missouri, for appellants.

Melinda G. Young, of Bretz & Young, L.L.C., of Hutchinson, for appellees.

Before PIERRON, P.J., BUSER and POWELL, JJ.

Per Curiam: Robert Hill, Marcelene Corcoran, Carmen Clark, and Natasha Willm
(Plaintiffs) filed a lawsuit against Hutchinson Care Center, L.L.C., Deseret Health Group,
Inc., Deseret Nursing and Rehabilitation at Hutchinson, Inc., Robertson Properties
Midwest, L.L.C., Hutchinson, Kansas, L.L.C., Jon H. Robertson, Garrett Robertson, and
Tyrell J. Robertson (Defendants) alleging wrongful termination and violation of the
Family Medical Leave Act.
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Shortly after the parties engaged in mediation, Plaintiffs filed a motion to enforce
a handwritten settlement agreement which they claimed the parties agreed to at the
conclusion of their mediation session. The district court granted Plaintiffs' request to
enforce the settlement agreement. Defendants appeal, asserting the district court erred
when it found the handwritten document constituted a binding and enforceable settlement
agreement, rather than a mere expression of the parties' intent to execute such an
agreement in the future. We affirm the district court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2011, Plaintiffs filed a lawsuit against Defendants for wrongful
termination and violation of the Family Medical Leave Act. On January 16, 2013, the
parties participated in a mediation session with a mutually agreed-upon mediator. At the
conclusion of the session, all four Plaintiffs and "Skyler Robertson, Compliance Officer,"
executed a document which was handwritten on lined paper and provided:

"1) The [D]efendants shall pay the following sums to the specified [P]laintiffs in full
[and] complete settlement of all claims pled or which might have been pled in the above
captioned matter arising out of their employment by or termination of employment by the
[D]efendants.
a) Marcelene Corcoran $20,000
b) Carmen Clark $30,000
c) [Robert] Hall $25,000
d) Natasha Willm $25,000
"2) The parties shall enter into:
a) Journal entry of Dismissal [with] Prejudice as to all settling plaintiffs
b) General Release, including any ADA, ADEA release as to all settling
plaintiffs
c) Joint [and] Mutual Confidentiality Agreement as to settling [P]laintiffs [and]
agreement not to seek rehire
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"3) Each party shall be responsible for their respective costs[,] fees [and] expenses. The
cost of mediation to be shared 50% [Plaintiffs and] 50% [Defendants]
"4) The aforestated settlement shall be paid as follows: 1) $25,000 on or before
Feb[ruary] 15, 2013 2) $25,000 on or before March 15 [and] 3) $10,000 a month
thereafter for 5 consecutive months.
"5) Defendants shall agree to a consent judgment of $115,000 which may be filed five
days (business) after written notice of default, i[.]e[.], failure to timely make a payment.
Defendant[s] shall be entitled to credit against said judgment for any payments made
prior to default."

Shortly thereafter, Defendants' counsel, Christopher K. Snow, sent an email to
Plaintiffs' counsel, Melinda G. Young, inquiring into Plaintiffs' ages because "[i]n order
to waive ADEA claims, there need[ed] to be a 21 day waiting period and a 7 day
revocation period" if any of them were over the age of 40. Young responded to Snow's
inquiry later that afternoon.

On February 23, 2013, several days after Defendants' first payment came due (as
set out in the handwritten document), Snow emailed Young a proposal to modify the
previously agreed upon payment schedule. Snow explained:

"As you know through recent communications with our mediator Dennis Gillen, Deseret
Health Group has requested that your clients modify the settlement payment term by 90
days, payments to commence on May 15, 2013. Unfortunately, this request was necessary
because after we inked the agreement, Deseret Health Group learned that Kansas was
slowing down Medicaid reimbursements which greatly impacted cash flow. This was not
in their control."

According to Snow, Gillen had told him that Plaintiffs were unwilling to accept this
modification without "additional security." Snow proposed a $25,000 increase to the
$115,000 consent judgment the parties had agreed upon at mediation, as additional
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security to satisfy the Plaintiffs' concerns that the Defendants would not meet the
modified payment schedule.

Snow attached a "modified agreement," which he asserted was signed by the
"individual principals," to his email. According to the modified agreement, entitled
"Settlement Agreement, Waiver and Release," Defendants agreed to pay Plaintiffs
$100,000, according to a 7-month payment schedule commencing on May 15, 2013. In
the event that Defendants failed to make a scheduled payment within 5 days of receiving
a written notice of default, Plaintiffs were entitled to a $135,000 consent judgment, less
any payments previously made by Defendants. Additionally, the document contained
clauses entitled, "Waiver and Release," "Covenant Not to Sue," "Destruction of Company
Property," "Non-Disparagement," "Confidentiality," "Non-Admission of Liability,"
"Waiver under Older Workers Benefit Protection Act," "Authority and Non-Assignment,"
"Survival of Covenants and Warranties," "Accord and Satisfaction," "Warranties and
Acknowledgments," and "Miscellaneous."

Three days later, on February 26, 2013, Young emailed Snow a written notice of
default, alleging that Defendants had defaulted on payments due under the settlement
agreement. Young also advised that Plaintiffs were not willing to sign Defendants'
modified settlement agreement because Plaintiffs received no increased payment in
exchange for the extension of the payment schedule, and the revised agreement contained
"substantially more terms than the original agreement." Young indicated, however, that
because Defendants terminated Clark 2 weeks after the mediation session, she believed
her clients might be willing to agree to an extension of the payment schedule if
Defendants agreed to rehire Clark.

On February 28, 2013, Snow responded to Young's notice of default with the
following email:
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"I should also note that Deseret Health is not in default as the parties have not entered
into a final settlement document as expressly stated and contemplated by the mediation
agreement. That has not happened. I sent you a draft, and only received a general email
back and nothing specific on changes. Sign it, or please make the changes your clients
want and I will review with my clients."

Despite Snow's contention that Defendants were not in default, Defendants delivered a
$25,000 check to Plaintiffs on March 1, 2013.

On April 9, 2013, Young emailed Snow another written notice of default, alleging
Defendants had defaulted on the second $25,000 payment due March 15, 2013. Young
informed Snow that Plaintiffs would seek a consent judgment pursuant to the terms of the
settlement agreement if Defendants did not issue payment.

Two days later, Snow sent Young a letter detailing the numerous outstanding
issues which, according to Snow, "[stood] in the way of future payments to [Plaintiffs]."
Snow explained:

"Primarily, as I indicated to you clear back on February 23, 2013 (and again on February
28, 2013), your clients have still not entered into a final settlement agreement and release.
This is a material term of the mediated settlement agreement and one that has been
ignored by your clients. Despite this, and out of a good faith belief that your clients
would comply with the mediated settlement agreement in this regard, I instructed my
clients to issue the first installment of $25,000 last month.
"Attached to this letter is another proposed final settlement agreement and release
taking into account the $25,000 payment already made, and altering the time of payment
as a result of your client's delay and in anticipation of your client signing this or a
negotiated final agreement on or before April 19, 2013."

Snow's latest proposed final settlement agreement and release contained
provisions similar to the previous one Snow had forwarded to Plaintiffs, with the
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exception of a revised payment schedule and a reduction to $115,000 in the agreed upon
consent judgment.

About 2 months later, on June 13, 2013, Young sent Snow a third notice of
default, alleging Defendants had defaulted on their obligations under the settlement
agreement by failing to make the $25,000 payment due March 15, 2013, and the $10,000
payments due on April 15, 2013, and May 15, 2013. Young explained that because the
Defendants failed to cure their default pursuant to the written notice Plaintiffs provided
on April 9, 2013, they would seek a consent judgment. Additionally, Young noted: "My
clients are of course willing to sign a general release in accordance with the terms set
forth in the settlement agreement. They have not agreed to different payment terms and
will not sign a release that provides for different payment terms than those agreed upon."

In response, Snow sent Young an email reiterating Defendants' belief that they
were not in default due to Plaintiffs' failure to comply with their obligations under the
"mediated settlement agreement." On the contrary, Snow asserted: "[Defendants] delay
has pushed back the settlement payments, not my clients." After encouraging Young to
accept the Plaintiffs' proposed final settlement agreement, Snow stated: "In the event you
file the consent judgment [Defendants] will seek attorney's fees and costs . . . . [Plaintiffs]
cannot seek to enforce an agreement [they] have failed to honor."

On August 9, 2013, Plaintiffs filed a motion to enforce the parties' "confidential
settlement agreement," with supporting documentation for in camera review. The next
day, Young sent an email to Snow, which said: "I have attached a proposed settlement
agreement for the settlement reached at mediation." The attached document, which
included a release of liability, claimed to memorialize the terms of the "full and final
settlement" agreed upon by the parties at the mediation. Of note, the document outlined
the payment schedule in the same manner as the handwritten document executed on
January 16, 2013, and it set the consent judgment at $115,000.
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Defendants filed a memorandum in opposition to Plaintiffs' motion to enforce the
settlement agreement. Defendants contended the January 16, 2013, handwritten document
was "conditioned on the execution and drafting of a final settlement agreement that
would incorporate the terms of the handwritten document and more particularly detail
certain provisions." According to Defendants, Plaintiffs' decision to furnish them with a
proposed final settlement agreement and release of liability on August 10, 2013,
supported their interpretation of the handwritten document. Defendants also claimed that
assuming the handwritten document was enforceable, Plaintiffs materially breached the
agreement by failing to (1) obtain a dismissal of their lawsuit, (2) effectuate a general
release of all claims, and (3) sign a joint mutual confidentiality agreement and agreement
not to seek rehire. Finally, Defendants maintained that Plaintiffs' material breach
precluded them from enforcing the settlement agreement.

On September 3, 2013, the district court held a hearing on Plaintiffs' motion to
enforce the settlement agreement and took the matter under advisement pending any
additional briefing. Although Defendants did not submit any additional briefing,
Plaintiffs submitted a written memorandum. In particular, Plaintiffs asserted that a
meeting of the minds had occurred on January 16, 2013. According to Plaintiffs, the
parties reduced their agreement to handwriting and, this writing did not state that it was
conditional upon the execution of a "'final settlement agreement.'" Additionally, Plaintiffs
disputed Defendants' contention that they had materially breached the handwritten
settlement agreement. Plaintiffs insisted they were always willing to execute the
documents identified in the settlement agreement but Defendants had willfully failed to
comply with the terms of the payment schedule.

On October 15, 2013, the district court issued an order granting Plaintiffs' motion
to enforce the settlement agreement. The district court reasoned that on January 16, 2013,
the parties settled the lawsuit in mediation and memorialized the terms in a handwritten
agreement signed by Plaintiffs and "'Skyler Robertson, Compliance Officer' on behalf of
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[D]efendants." After noting there had been no assertion that Robertson did not have
authority to bind Defendants, the district court found that under the agreement,
Defendants were required to pay Plaintiffs $100,000, in scheduled periodic payments but
rather than making timely payments, Defendants sought to modify the payment schedule
and Plaintiffs rejected their request. The district court further explained that although the
handwritten agreement specified that the parties would execute additional documents,
"[t]he mediated agreement . . . makes no reference to a final settlement agreement."
Consequently, because "[t]he law favors compromise and settlement of disputes," the
district court found that neither party was entitled to repudiate the settlement agreement.
The district court granted Plaintiffs' motion and ordered Young to prepare "a journal
entry of judgment as specified in the January 16, 2013, agreement."

Defendants objected to Plaintiffs' proposed journal entry and moved for
reconsideration of the district court's order. In addition to their complaints regarding the
proposed journal entry, Defendants reasserted that the district court erred when it granted
the Plaintiffs' motion to enforce. Defendants claimed that because the handwritten
document contemplated the execution of a final settlement agreement, Defendants
believed they would have the opportunity to review and sign a final settlement
agreement; therefore, with the exception of Deseret Health Group, Inc., none of the
corporate defendants signed the handwritten document. According to Defendants,
Robertson, Deseret Health Group, Inc.'s, compliance officer, is not an officer of the
remaining corporate defendants; therefore, he had no authority, express or apparent, to
bind them; "[a]t most, Mr. Robertson's signature [was] binding on the only entity for
which he could sign, Deseret Health Group."

In response, Plaintiffs stated: "Defendants obviously intended to be bound by the
mediation agreement, which is evidenced by their partial performance . . . and their
attempt to renegotiate the terms of the original agreement." Plaintiffs also insisted that
Defendants' claim that Robertson's signature did not bind all Defendants was "improper
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and frivolous," because Robertson clearly had express or apparent authority to settle the
lawsuit.

Following a hearing on the Defendants' motion for reconsideration, the district
court issued a journal entry on February 28, 2014, granting Plaintiffs a judgment against
Defendants in the amount of $90,000, i.e., $115,000 minus the $25,000 payment
Defendants previously paid. The district court found that Defendants breached the
handwritten settlement agreement by failing to comply with the payment schedule.

Defendants filed this timely appeal.

DID THE HANDWRITTEN DOCUMENT CONSTITUTE A
BINDING SETTLEMENT AGREEMENT?

Defendants contend the district court erred when it held that the handwritten
document the parties drafted at the end of their mediation session constituted a binding
and enforceable settlement agreement, rather than a mere expression of their intent to
execute such an agreement in the future.

Settlement agreements are a type of contract; therefore, the principles of contract
law govern the enforcement and interpretation of such agreements. Farm Bureau Mut.
Ins. Co. v. Progressive Direct Ins. Co., 40 Kan. App. 2d 123, 129, 190 P.3d 989 (2008).
The determination of whether a contract exists depends upon the parties' intentions and
generally presents a question of fact reviewed under the substantial competent evidence
standard. See U.S.D. No. 446 v. Sandoval, 295 Kan. 278, 282, 286 P.3d 542 (2012).
Appellate courts, however, exercise unlimited review over the interpretation and legal
effect of written instruments, as the lower court's interpretation is not binding. Prairie
Land Elec. Co-op v. Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270
(2014).
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Defendants maintain the handwritten document was nothing more than "an
agreement to make a contract in the future," because the parties did not intend to be
bound until their agreement was reduced to a formal writing containing the material
terms of their settlement. In support, Defendants point to the fact that the handwritten
document mentions the parties' intent to enter into a journal entry of dismissal with
prejudice, a general release, a joint and mutual confidentiality agreement, and an
agreement not to seek rehire but does not specify the contents of these documents.
Defendants also argue that Plaintiffs subsequently would not have drafted a proposed
settlement agreement if they believed the handwritten document was the parties' final,
enforceable agreement.

A brief summary of Kansas contract law is necessary to properly evaluate this
issue. When determining whether a settlement agreement was formed, it is important to
remember "'[t]he law favors settlement of disputes,' [citation omitted,]" over protracted
litigation. O'Neill v. Herrington, 49 Kan. App. 2d 896, 903, 317 P.3d 139 (2014), rev.
denied 301 Kan. ___ (2015). To form a binding settlement agreement, there must be a
meeting of the minds on all of the material terms of the parties' bargain and a
manifestation of an intention to be bound by these terms; any nonmaterial discrepancies
can be resolved by the court, consistent with the parties' intent, if the parties have agreed
upon the material terms. See U.S.D. No. 446, 295 Kan. at 282; O'Neill, 49 Kan. App. 2d
896, Syl. ¶ 4, 903.

How is the parties' intent determined?

"In determining intent to form a contract, the test is objective, rather than subjective,
meaning that the relevant inquiry is the 'manifestation of a party's intention, rather than
the actual or real intention.' [Citation omitted.] Put another way, the 'inquiry will focus
not on the question of whether the subjective minds of the parties have met, but on
whether their outward expression of assent is sufficient to form a contract.' [Citation
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omitted.]" Southwest & Assocs., Inc. v. Steven Enterprises, 32 Kan. App. 2d 778, 781, 88
P.3d 1246 (2004).

Generally, agreements to execute a contract in the future are not binding unless the
parties have agreed upon all the material terms, leaving nothing essential to complete the
contract for future negotiations. Phillips & Easton Supply Co., Inc. v. Eleanor
International, Inc., 212 Kan. 730, 734, 512 P.2d 379 (1973). In other words:

"'Where the intent of the parties is clear that they are negotiating with a definite
understanding the terms of any contract are not fully agreed upon and a written formal
agreement is contemplated, and no valid, enforceable contract is to exist until the
execution of such an agreement, a binding contract does not come into existence in the
absence of such execution.' [Citation omitted.]" 212 Kan. at 735.

Nevertheless, the simple fact that the parties contemplate the subsequent execution
of a formal instrument as evidence of their agreement does not necessarily imply that
they have not yet bound themselves to a definite and enforceable contract. 212 Kan. at
735. As explained by our Supreme Court in Phillips & Easton Supply Co., Inc.,

"'The matter is merely one of expressed intention. If [the parties'] expressions convince
the court that they intended to be bound without a formal document, their contract is
consummated, and the expected formal document will be nothing more than a memorial
of that contract. In very many cases the court has been convinced that such was the
intention and has held the parties bound by a contract even though no document has been
executed.'" 212 Kan. at 735-36.

Finally, once the parties have agreed to settle their dispute, neither party may repudiate
the agreement. O'Neill, 49 Kan. App. 2d at 903.

We are persuaded there is substantial competent evidence the handwritten
document is a contract that clearly expressed the parties' intent to settle the lawsuit and
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end the litigation upon the Defendants' payment of monies to the Plaintiffs. See U.S.D.
No. 446, 295 Kan. at 282. Three factors compel this conclusion.

First, the material terms of settlement agreements used to resolve ordinary
litigation disputes typically include references to the case, the parties, the plaintiff's
promise to dismiss the lawsuit and release liability, and the payment of settlement monies
by the defendant. In this case, the plain language of the handwritten document identifies
the case, the parties to the settlement agreement, and the consideration provided by the
parties in order to effectuate the contract. The Plaintiffs promised to settle the dispute and
dismiss their lawsuit upon Defendants' promise to pay fixed amounts to named Plaintiffs.
The dates these payments were due were also fixed. Moreover, the document also
detailed the parties' rights and responsibilities in the event of Defendants' default which
could lead to a consent judgment in the amount of $115,000.

In short, the handwritten document exhibited all the components that one would
expect in a typical settlement agreement—within the four corners of the handwritten
document is found material terms of agreement resolving the litigation upon the payment
of specified settlement sums on certain dates to compensate the named Plaintiffs in
agreed-upon amounts.

Second, while the handwritten document expressly provides for the subsequent
execution of a journal entry of dismissal with prejudice, a general release, a joint and
mutual confidentiality agreement, and an agreement not to seek rehire, these are ordinary
documents the parties agreed to submit to implement the settlement agreement. That
these documents would be executed by the parties in the future was material to the
agreement, but the particular language of these standard documents was not material to
the contract. In the ordinary course of settling litigation, documents implementing the
settlement agreement are typically and necessarily left for future handling by the parties.
Moreover, in their appeal, Defendants have not identified any material terms that required
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further negotiations, and the handwritten document does not contain an express
reservation of right not to be bound in the absence of particular language contained in the
implementing documents.

Third, Defendants' outward expressions of assent after the execution of the
handwritten document demonstrate that the parties consummated a binding and
enforceable settlement agreement. Kansas law provides: "The subsequent conduct and
interpretation of the parties themselves may be decisive of the question of whether a
contract has been made even though a document was contemplated and has never been
executed." King v. Wenger, 219 Kan. 668, 672, 549 P.2d 986 (1976). Several examples of
statements and conduct by counsel for Defendants show that Defendants considered the
handwritten document to be a binding settlement agreement.

As Plaintiffs noted in the district court, "[o]nly after [Defendants] were
unsuccessful in renegotiating the original terms did they argue that the original agreement
was not enforceable." About 1 week after Defendants' first payment was due, Defendants
attempted to reopen negotiations in order to delay the payment schedule by 90 days, a
needless action if the parties were not yet bound to the terms of the settlement. In fact,
Snow's email detailing Defendants' requested modification proves that Defendants
believed the handwritten document was a binding contract: "Unfortunately, this request
was necessary because after we inked the agreement, Deseret Health Group learned that
Kansas was slowing down Medicaid reimbursements which greatly impacted cash flow.
This was not in their control." (Emphasis added.) Similarly, Snow noted:

"[T]he mediation agreement requires I receive written notice of default and a 5 day cure
if you are claiming we are in default. I have never received such notice and obviously
wanted to avoid that which is why I reopened the mediation and . . . attempt[ed] to
modify the payment schedule."

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Additionally, the "Settlement Agreement, Waiver and Release" Snow attached to his
email states: "[O]n January 16, 2013, the Parties engaged in mediation and reached a full
and final settlement, the terms of which are reflected herein." (Emphasis added.) Finally,
Defendants' partial performance of the contract, i.e., making a $25,000 payment to
Plaintiffs on March 1, 2013, also negates their contention that they were not bound by the
settlement terms outlined in the handwritten document until the parties executed a formal
instrument.

In resolving this issue, one opinion of our court, Hattan v. Schoenhofer, No.
99,734, 2009 WL 2902570 (Kan. App. 2009) (unpublished opinion), is especially
persuasive. In Hattan, William Hattan filed a legal malpractice action against Mark
Schoenhofer, after Schoenhofer failed to file a civil battery action prior to the expiration
of the statute of limitations. Hattan and Schoenhofer negotiated a written settlement
agreement; however, Schoenhofer refused to sign it, so Hattan sued for breach of
contract. The district court granted summary judgment in favor of Schoenhofer, finding
that no binding agreement existed because "'[t]here was not an intent to be bound until
the document was executed and signed.'" 2009 WL 2902570, at *2.

Hattan appealed, and our court applied a nonexclusive, four-factor test—utilized in
Conway v. Brooklyn Union Gas Co., 236 F. Supp. 2d 241 (E.D.N.Y. 2002)—to determine
whether the parties intended to be bound by the settlement agreement absent a formally
executed document:

"(1) whether there has been an express reservation of the right not to be bound in the
absence of a signed writing; (2) whether there has been partial performance of the
contract; (3) whether all of the terms of the alleged contract have been agreed upon; and
(4) whether the agreement at issue is the type of contract that is usually committed to
writing." Hattan, 2009 WL 2902570, at *5.

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Our court noted that while no single factor was decisive, the test provided guidance in
evaluating the totality of the circumstances and the parties' intent regarding the binding
nature of the settlement agreement. 2009 WL 2902570, at *5.

The Hattan court concluded that under the Conway four-factor rubric, the parties
had entered into a binding and enforceable settlement agreement. 2009 WL 2902570, at
*5-9. In particular, our court found that Schoenhofer's counsel had communicated to
Hattan's counsel that his client agreed to the terms of the agreement and, as a result,
"[a]uthority and confirmation were both present in [these] statements. The expected
formal document was nothing more than a memorial of that agreement." 2009 WL
2902570, at *9.

Applying the Conway test to the facts of this case, we conclude there was a
meeting of the minds between the Plaintiffs and Defendants regarding the material terms
of their settlement. First, the handwritten document was, in fact, executed by the parties
and did not contain an express reservation of the right not to be bound in the absence of a
formal instrument. Second, Defendants partially performed on the agreement. Third,
Defendants have identified no material terms which remained open for further
negotiations. Fourth, while settlement agreements are typically formalized in writing,
there is no requirement the writing must be typed or memorialized in a particular format.
In short, Hattan is persuasive authority to support the district court's finding that the
handwritten document was a valid contract.

In the alternative, Defendants argue that any contract was unenforceable for two
reasons. First, Defendants insist that Plaintiffs materially breached the settlement
agreement by failing to execute a journal entry of dismissal with prejudice, a general
release, a joint and mutual confidentiality agreement, and an agreement not to seek rehire.
According to Defendants, this breach precludes Plaintiffs from seeking to enforce the
agreement. In other words, Defendants essentially contend that Plaintiffs' execution of the
16

waiver and release documents was a condition precedent to their performance, and the
district court erred by excusing Plaintiffs from performing their obligations under the
settlement agreement.

"Conditions precedent to performance under an existing contract arise from the
terms of a valid contract and define an event that must occur before a right or obligation
matures under the contract." M West, Inc. v. Oak Park Mall, 44 Kan. App. 2d 35, 47, 234
P.3d 833 (2010). Despite Defendants' assertion to the contrary, the handwritten
settlement agreement does not provide that Plaintiffs' execution of the various
implementing and supporting documents was a condition precedent to Defendants'
performance. Indeed, the handwritten document negates such an intent because it
contains a detailed payment schedule, which obligated Defendants to begin making
payments within 1 month of the mediation session and provides a remedy for Plaintiffs
should Defendants fail to abide by the terms of the payment schedule. Defendants could
have bargained for the execution and exchange of the supporting documents prior to
payment of any settlement monies, but such language is not found in the written
agreement.

The district court simply granted Plaintiffs the remedy to which they were entitled
under the settlement agreement; the district court's order did not excuse Defendants from
performing their obligations under the agreement. Although the agreement does not
specify a timeframe for Plaintiffs' performance, this was not a unilateral contract and,
thus, Plaintiffs must still make good on their promises under the terms of the agreement.

Next, Defendants assert that Deseret Health Group, Inc., was the only defendant
against whom the settlement agreement could be enforced because Robertson, a
representative of Deseret Health Group, Inc., did not have express or apparent authority
to bind all of the defendants. Plaintiffs counter that Robertson clearly had express or
apparent authority to settle the case, as his signature does not indicate that he only
17

represented Deseret Health Group, Inc., the handwritten document refers to Defendants
collectively, and Defendants' proposed "'Settlement Agreement, Waiver and Release'"
indicates their "expectation that all defendants were bound by the mediation agreement,
not just . . . Deseret."

At the outset, as Plaintiffs correctly note, Defendants raised this argument for the
first time in their motion for reconsideration. A motion to reconsider is generally treated
as a motion to alter or amend judgment under K.S.A. 2014 Supp. 60-259(f). Exploration
Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004). Motions
filed under K.S.A. 2014 Supp. 60-259(f) provide district courts with the opportunity to
"reconsider its prior findings of fact and conclusions of law and make what it deems to be
appropriate amendments and alterations thereto." In re Marriage of Willenberg, 271 Kan.
906, Syl. ¶ 2, 26 P.3d 684 (2001). Consequently, district courts may properly deny a
motion for reconsideration "where the moving party could have, with reasonable
diligence, presented the argument prior to the verdict." Wenrich v. Employers Mut. Ins.
Co., 35 Kan. App. 2d 582, 590, 132 P.3d 790 (2006). Appellate courts review a district
court's decision on a motion to alter or amend for abuse of discretion. Exploration Place,
Inc., 277 Kan. at 900.

Defendants do not explain their failure to argue Robertson's alleged lack of
authority to bind the entirety of the defendants prior to the issuance of the district court's
order. Nor do they indicate why they could not have raised this argument, with
reasonable diligence, in a timely fashion. As a result, the district court could have refused
to consider this argument but it is unclear whether the court actually denied Defendants'
motion on this basis.

Nevertheless, the district court did not err in denying this claim on reconsideration
because Defendants have never presented any evidence to prove that Robertson acted
only as an agent of Deseret Health Group, Inc., and did not have authority to bind the
18

remaining defendants. The evidence, including Snow's conduct and communications,
persuades us that all of the defendants intended to be bound by the settlement agreement.

In conclusion, the district court did not err when it found the parties entered into a
binding and enforceable settlement agreement. The evidence demonstrates that a meeting
of the minds occurred during the parties' mediation session and the parties fully intended
to be bound by the handwritten document they executed at the conclusion of the
mediation. Moreover, this document reflected all of the material terms of their negotiated
settlement. Accordingly, the district court did not err in enforcing the settlement
agreement by ordering that Defendants pay the consent judgment.

Affirmed.